Judiciary on trial

Since Justice Abubakar Mohammed Talba sentenced John Yakubu Yusufu to six years imprisonment with N750,000 fine option for a N32.8 billion pension funds fraud, the judge has been under fire. The Judiciary too is not spared. Critics are angry that Yusufu could get away with what they called “such a light sentence”, considering the “grave offence” he committed. Who is to blame; the judge, the EFCC or the law? Eric Ikhilae reports.

IT was a spontaneous reaction. Nigerians virtually rose as one to condemn the verdict of Justice Abubakar M. Talba of the Abuja High Court, sentencing John Yakubu Yusufu to six years imprisonment with N750,000 fine option for the theft of N32.8 billion pension funds. Yusufu was arraigned with six others. Unlike others, he pleaded guilty after entering into plea bargain with the Economic and Financial Crimes Commission (EFCC).

In unison, Nigerians deplored what they called a “light sentence”. Some called Justice Talba names, others defended him, saying he was only applying the law. EFCC arraigned Yusufu and others on March 29, last year before Justice Talba on a 16-count charge. They all pleaded not guilty; but Yusufu changed his plea last week and entered into plea bargain with EFCC, which earned him the controversal verdict from Justice Talba.

They were charged with conspiracy and criminal breach of trust under Sections 97 and 315 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory, Abuja, Nigeria 2007.

When EFCC entered into plea bargain with Yusufu, the charge against him was reviewed. The amended charge raised the counts to 20; included two others and changed the law under which they were charged.

Those included are Christain Madubuike and Mrs Uzoma Cyril Atang, a serving Director, Finance and Accounts, Ministry of Communications.

In line with the plea bargain, the accused were re-arraigned on January 29, under the amended charge. While others pleaded not guilty, Yusufu pleaded guilty to counts 18, 19 and 20 brought under Section 309 of the same Penal Code.

Following his plea and conviction, his lawyer, Maiyaki Theodore Bala urged the court to be lenient in sentencing his client. But EFCC’s Rotimi Jacobs (SAN) urged the court to reject his request.

Jacobs agreed that Section 309 prescribes a maximum sentence of two years, but urged the court to impose “such sanction that will send out a clear message that the era of impunity is gone.”

Section 309 stipulates: “Whoever commits a crime of misappropriation shall be punished with an imprisonment term which may be extended to two years or with fine or both”

In sentencing the convict, Justice Talba began by deprecating Yusufu’s conduct. He said: “The court has a duty to do justice for, not just the convict, but for the society at large.

“Today, Nigeria is bedevilled with the cankerworm of white-collar crime which has subjected the citizens to abject poverty. It is not in doubt that the standard of living of an average Nigerian is declining day by day.”

He sentenced Yusufu to two years imprisonment with N250,000 fine option on each of the three counts and held that the sentence should run concurrently.

There was outrage over the verdict, which also threw up some questions. These include: What informed the decisions of the prosecution and the judge? The role of the judiciary in the context of ensuring social justice and whether, in deciding cases, the judge could be excused for being blind to societal mood, bearing in mind that the court operates within the society and exists to mediate social conflicts?

There are also questions on the benefit of plea bargain in resolving criminal cases? The adequacy of the criminal justice system and criminal laws to effectively deal with crimes? The quality of mind of judges and whether it is time to review the process of appointing judges?

There are conflicting views on the reason for the judge’s decision. Those in his support argued that he acted within the law, adding that EFCC should be blamed. Others think otherwise.

Those,who believe that Justice Talba has not erred-argued that the law under which Yusufu was charged prescribes a maximum sentence of two years, an option of fine or both, and gave the judge the discretion to apply any. To them, by applying the option that his mind preferred, the judge cannot be crucified.

Critics, however, wondered why the judge chose to exercise his discretion in favour of the accused, having earlier regretted the harm corruption and white collar crimes have done to the country.

They wondered why the plight of millions of retired policemen, whose savings were stolen by the accused, the social implication of his decision and its effect on serving public officers did not prompt him to exercise his discretion to reflect that the accused was actually punished, by combining both imprisonment and fine and even imposing a huge fine, since there is no ceiling on the fine he could impose under Section 309.

Those who query the EFCC’s motive in entering plea bargain with Yusufu, are wondering why he was charged under the Penal Code, one of the relics of the colonial era, enacted in 1916.

They wonder why the EFCC charged them before the Abuja High Court and not the Federal High Court where the more recently enacted Criminal Code and EFCC Act would have been applicable and available for more offences to tie the culprits with higher sentences.

They asked why the EFCC charged Yusufu and others with criminal misappropriation when the offences for which they were linked have elements of fraud, conspiracy to defraud, obtaining by false pretences, money laundering, administrative mismanagement and stealing, among others.

Critics also wonder why the EFCC is still pushing plea bargain when past cases have ended at the detriment of the state. They cited the cases of former Bayelsa State Governor Diepreye Alamieyeseigha; former Edo State Governor Lucky Igbinedion and former Chief Executive Officer, Oceanic Bank, Mrs Cecilia Ibru.

On December 19, 2008, an Enugu High Court fined Igbinedion N3.5 million after a plea bargain arrangement with the EFCC. Igbinedion was initially arraigned on a 191-count charge which, on December 17, 2008, was reduced to one-count after his plea bargain.

He was made to plead guilty to the charge: failure to make a declaration of his interest in the Account No: 4124013983110 with a new generation bank in the declaration of assets form of the EFCC, an offence it said was punishable under Section 27 (3) of the EFCC Act 2008.

By the arrangement, Igbinedion freed himself from the hold of the law in the country but the international community was not amused.

The same EFCC in 2010 ensured that Ibru pleaded guilty to a watered down three-count charge, under the same plea bargain arrangement. She spent just six months in the hospital, rather than in prison custody having earlier been charged with three other senior banking executives, in a multibillion-dollar banking scandal.

Critics argued that Ibru and all other cases where plea bargain had been deployed made a mockery of justice.

They compared the Ibru case with that of Bernard Lawrence Madoff, an American former businessman, stockbroker, investment advisor and financier who pleaded guilty to 11 federal felonies and admitted to turning his wealth management business into a fraudulent scheme, with which he defrauded thousands of investors of billions of dollars. He is currently serving a 150-year jail term. Ibru was only made to forfeit assets worth N1.29 billion.

Others have particularly faulted the plea bargaining, arguing that it has tainted the image of the judiciary since its adoption some years back.

Plea bargain, by its nature, is an agreement in a criminal case between the prosecutor and defendant, under which the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor.

This may mean that the defendant will plead guilty to a less-serious charge or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

Although advocates of plea bargain argue that the arrangement prevents a lengthy criminal trial and waste of public funds, critics contend that a situation whereby an accused person is offered the opportunity to plead guilty to a minor charge is unhealthy for any justice system because it sends the wrong signal that it is profitable to steal.

Those who said the judge acted within the law urged the government and all other relevant bodies to amend of the criminal and civil laws with a view to ensuring their relevance in today’s world. They argued that it is ridiculous that the nation’s statute books contain fines so ridiculous that a convict would readily pay and walk into freedom.

There is also the argument that the court must always be guided by societal mood in taking decisions. Critics argue that judges must never be blind to what the society thinks else a wrong decision that sets the society ablaze will not spare the judge and his court.

To them, this decision has not only disproved the government’s claim to be fighting corruption, it has sent a dangerous signal: That those in service should not think of pension. They should help themselves to what they can grab now. They ask: if policemen are not sure of their pension, who then is?

Others also suggest an overhaul of the process of judges’ appointment, noting that the current arrangement where external influence dictates who mans the Bench leaves room for manipulation and the emergence of individuals with flawed attributes.

The Nigerian Bar Association (NBA) and lawyers have reacted to the development and suggested ways of preventing a recurrence. Those who spoke include NBA President Okey Wali, Malam Yusuf Ali, Adeniyi Akintola, Rickey Tarfa, Emeka Ngige (all Senior Advocates of Nigeria), rights activist, Bamidele Aturu, Wahab Shittu of the University of Lagos, Allens Agbaka, Richard Chukwuocha and Abubakar Shamsudeen.

Wali, while reading a communiqué issued at the end of NBA’s meeting last week in Abuja, said: “On the conviction of Yusuf, it is obvious that the law is inadequate and so the sentence is inadequate; that is why we are calling for the amendments of the law.

“Our position on the conviction of Yusuf is that we do not speak off the cuff but from what we gathered: the law on which he was charged says two years with an option of fine, so we would be calling for an amendment of that law, because he is getting away with so much with little punishment.”

He said the criminal/penal code in use in Nigeria is a 1916 ordinance, stating that it should not still be in use this present day and age.

Wali said there was no noticeable strong will on the part of the government to fight corruption.

Ali said nothing short of death sentence or at least life imprisonment would curb corruption or reduce it to a minimum. To him, the punishment should have been more severe.

He said: “Of course the punishment is not commensurate with the gravity of the offence but we must remember that the law gives the judge discretion in awarding punishment.

“I have advocated several times that corruption should attract the death penalty, or at least life imprisonment,” Ali said.

Akintola said the laws need a review. He urged the Federal Government to revisit recommendations of the late jurist, Kayode Eso, in 1991, on how to deal with corruption.

The senior lawyer said he would not blame the judge for handing out the sentence, as he could not have gone outside what the law states.

“People should comment on issues they know of the facts. Comments should not be made based on sentiments or emotions. We should first of all ask: Under what law was the defendant charged? What was the penalty prescribed?” Akintola said.

Tarfa agreed with Akintola, saying the issue lies with the laws. “It will depend on the law and the evidence placed before the court,” he said.

Ngige argued that the laws need to be overhauled, especially on punishment for graft.

To him, it is also not a question of whether the laws are stringent enough, but the need for the EFCC to have laid-down guidelines on how to negotiate plea bargaining with accused persons.

“The commission ought to have included the fine payable by the accused in the bargain. Leaving issue of fine payable to the judge is very unsafe and prone to abuse. This is the second time EFCC is being outsmarted by accused persons in plea bargaining deals.”

Mr Bamidele Aturu described the sentence handed to Yusuf as unacceptable. “It is very baffling and I must say, very embarrassing, not only from the standpoint of legal points involved, but also from the standpoint of the so-called war against corruption.

“The noise about fighting corruption is being exploded by this sort of embarrassing sentencing that we are getting here and there. I think it is very clear now that the Nigerian judiciary, the Nigerian legal system, Nigerian lawyers and the Nigerian public are not able to fight corruption.

“What is being done now is to give corrupt people a slap on the wrist. This is not even a slap on the wrist any longer. It’s now a handshake, because if we call it a slap on the wrist, we’ll be wrong. So it’s a handshake with corruption.”

Shamsudeen said the judge was without blame because he acted within the law. He said although the sentence was inadequate, the prosecuting agency and the law should be blamed.

“This is not the first time. EFCC should learn. Those, whose duty it is to put the law up to date should act. Nigerian laws are replete with ridiculous provisions and fines,” he said.

Agbaka faulted the adoption of plea bargain by the EFCC. He described it as a lazy approach to criminal prosecution. He said it was open to manipulation and abuse in a corrupt society like this. He argued that the problem was not necessarily with the laws but their application and those applying them.

Chukwuocha argued that the decision on Yusuf mocks the government’s vaunted fight against corruption. He stressed the need to review the EFCC Act, particularly as it relates to plea bargain.

“One of the fundamental reasons for punishing criminals is to deter others from passing the same route. The judgment is unfortunate and sends out wrong signal to Nigerians.

“What difference it would have made had the convict been denied the option of fine? I cry for the helpless police pensioners. This slap on the wrist judgment must stop,” Chukwuocha said.